120 Mass. 358 | Mass. | 1876
1. The first inquiry presented by the exceptions is whether the counts for forging and uttering the bond to dissolve an attachment in the suit of Belcher against Costello, which purported to run to John Belcher, might properly be joined in one indictment with the counts which allege the forging and ttering the bond which purported to run to James M. Carter, and to be given on condition of prosecuting an appeal to the Superior Court from the Municipal Court of the city of Boston, the offences charged in these two sets of counts being distinct criminal acts. v
It has long been common in practice in this Commonwealth to include in one indictment charges of distinct substantive acts, even when such acts are felonious in their character, if they are of the same general description, and the mode of trial and the nature of the punishment "are the same. The correctness of this
2. It is contended that the bond alleged to have been intended to dissolve the attachment, could not have operated so to do, and that, as it was void for that purpose, (the steps requisite to give it final validity not having been taken,) there could have been no forgery of it. It is true that the false making of an instrument merely frivolous, or one which upon its face is clearly void, is not forgery, because -from its character it could not have operated to defraud, or been intended for that purpose; but, if the instrument is one made with intent to defraud, although, before it can have effect, other steps must be taken or other proceedings had upon the basis of it, then the false making is a forgery, notwithstanding such steps may never have been taken or proceedings had. So if, with this intent, it is to be or has been connected with facts, the existence of which are essential to its validity, which are merely simulated so that it would not be operative even if truly signed, because such facts had no actual existence, it is still a forgery. If, for instance, there had been no actual notice to the attaching creditor, a party having been employed (as there was evidence tending to show had been done in this case) falsely to personate him, the bond could not operate as against him to dissolve the attachment; yet if the false mak
It is objected that there was no application to the master signed by the defendant, by which any proceeding to dissolve the attachment by giving bond could have been initiated. But there was a written application by the defendant, and this is all that the statute requires; it was not necessary that it should have been signed by him. Coddington v. Goddard, 16 Gray, 436. The defendant further contends that, before the bond could have been operative, there must have been an approval of it by the master, which does not appear by the indictment to have been done. It is not, however, uncommon, to have a bond prepared before the steps necessary to give it validity are actually taken; and if this is made falsely, it may be used to defraud by causing such steps to be thereafter taken. Had the bond been sufficient, and had the defendant obtained the approval of it by the master, upon the return of the appraisal he would have obtained an apparently good record title, which could have been used to deceive any person disposed to purchase that which had been attached.
It is further argued that the bond was on its face invalid, and could not therefore have been a forgery. The bond was given under the St. of 1870, c. 291, § 3, and was intended to dissolve an attachment of real property alleged to have been fraudulently conveyed. It differs from the bond therein provided for in this, that, while it binds the obligor to pay what the obligee shall recover, not exceeding $3600, it does not provide that the plaintiff shall establish his title to the land, against the person holding the record title thereto, by a writ of entry. It therefore imposes upon the signers thereof a heavier responsibility than they are compelled to take in order to dissolve the attachment; but this emission would not render the bond, if truly signed, less a valid enc for the purpose of dissolving the attachment. If, in order to enforce the bond, the plaintiff were not compelled to bring a writ of entry, he could not object to it on that account. The
How this bond could have been used to defraud need not have been set out in the indictment in detail; it was enough that it appeared from the character of the instrument, together with the provisions of the statute, that it might have been so used, in connection with other facts, real or simulated, either then existing or with which it was to be afterwards connected. Commonwealth v. Hinds, 101 Mass. 209, 211.
3. The considerations which have been suggested, as to the counts of the indictment relating to the bond to dissolve the attachment, dispose of the objections in regard to the counts relating to the appeal bond.
4. The defendant relies upon an alleged variance between the ' bond to dissolve the attachment, as set forth in the indictment, and that produced at the trial, the former being a bond without an approval, and the latter with an approval annexed. But the approval does not constitute a part of the bond, and it was not necessary in the indictment to aver that it had actually been approved, because, as before held, if made fraudulently with intent that it should be approved, it was a forgery; and if offered for approval, it was uttered as a forgery. The approval might properly be put in evidence, because it bore directly upon the question of the intent with which the bond was made.
5. The statements made by Hayes before the clerk of the court — that he then called himself Schell,-that he described his places of business, his residences, his occupation, and his ownership of a particular house — bore directly upon the identity of the person described as Schell in the bond, and, in connection with the contradiction of them and the proof who the person calling himself Schell actually was, tended to show that the name of Schell was fictitious. The defendant could not, by admitting that the name was fictitious, prevent the government, by any legitimate evidence, from proving it so. Commonwealth v. Miller, 3 Cush. 243. Commonwealth v. McCarthy, 119 Mass. 354.
If all that was meant by it was that the intent to' defraud by the use of the name should be shown to exist in this case, and that it was not enough merely to show that it had been used by Hayes fraudulently before, such instruction should have been given. An assumption of the name generally for the purpose of fraud would not be enough, unless it were also shown that the party used the name, or procured it to be used, fraudulently in the instance charged. Whether the name was used in the particular instance with intent to defraud by a deception as to the identity of the person whose signature is affixed, is always a question of fact for the jury.
The request, however, cannot be construed as intended only to draw the attention of the presiding judge to the familiar principle, that an intent to defraud must be shown in the particular instance. This instruction he could not have failed to give, except by inadvertence. The object of the request was to obtain a ruling that if Hayes had previously assumed the name, and used it for the purposes of fraud generally, and with no reference to this fraud, his use of it would not thereafter be a forgery. That it was so understood by the presiding judge is obvious from the ruling given by him in response, which was in substance that, although a party might sign or use a fictitious name which he had adopted for innocent purposes, he could not acquire a right to use it for fraudulent purposes by using it any number of times for fraudulent purposes. This instruction was correct. The essential element of forgery consists in the intent, when making the signature or procuring it to be made, to pass it off fraudulently as the signature of another party than the one who actually makes it. If this intent thus to personate another exists, the instrument is still a forgery, even if the name affixed is actually the same name with that borne by the party who signs it. So there may be a forgery by the use of a fictitious name, as well as by the use of a person’s own name, if the in
In Rex v. Bontien, ubi supra, which is much relied on by the defendant, it was held, after conviction, that it did not sufficiently appear upon the evidence that the prisoner had not before gone by the name he used, or that he had assumed it for the purpose of accepting the bill in question. The question is treated by the court as one of fact, and the case simply holds that, by the mere use of a name not his own, there was not sufficient evidence that the party had sought to deceive as to his identity, he having previously borne the name used. It cannot be considered as sanctioning the position, that, if a party fraudulently uses a false name, or even his own with intent to deceive as to his identity, this is not a forgery.
The previous use of the fictitious name would be evidence that, by the use of it in the case charged, the person so using it did not do so for the purpose of representing himself to be another than the actual signer, just as evidence that he described himself correctly in all particulars as to business and occupation would have a similar' tendency. So where one assumes the name of an existing person other than himself, or an entirely fictitious person, and connects it with an entirely false description as ap plied to himself, it is evidence that the use of the name is one of the acts by which the fraud is carried on, and that it is intended that the credit shall be given not to himself, but to the imaginary person whom he creates and describes, and that he thus uses the name with a view to avoid the responsibility of the act, or to prevent himself from being traced as its author.
Exceptions overruled.